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PUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 14-1966

NANCY A. WILLIAMS, on her own behalf and on behalf of all


others similarly situated,
Plaintiff - Appellant,
and
SANDRA SHERMAN,
Plaintiff,
v.
GENEX SERVICES, LLC, f/k/a GENEX SERVICES, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:13-cv-01942-MJG)

Argued:

October 28, 2015

Before AGEE and


Circuit Judge.

WYNN,

Decided:

Circuit

Judges,

and

December 18, 2015

HAMILTON,

Senior

Affirmed by published opinion. Senior Judge Hamilton wrote the


opinion in which Judge Agee and Judge Wynn joined.

ARGUED: Nicholas Woodfield, THE EMPLOYMENT LAW GROUP, P.C.,


Washington, D.C., for Appellant.
Russell Robert Bruch, MORGAN,
LEWIS & BOCKIUS LLP, Washington, D.C., for Appellee. ON BRIEF:
R. Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., Washington,

D.C.,
for
Appellant.
Michael
J.
Puma,
Pennsylvania, Allyson N. Ho, MORGAN, LEWIS &
Dallas, Texas, for Appellee.

Philadelphia,
BOCKIUS LLP,

HAMILTON, Senior Circuit Judge:


Plaintiff-Appellant, Nancy Williams (Williams), is employed
by Defendant-Appellee, Genex Services, LLC (Genex), as a Field
Medical Case Manager (FMCM).

She brought this action against

Genex claiming that Genex was required to pay her overtime under
the Fair Labor Standards Act (the FLSA or the Act), 29 U.S.C.
201 to 219, and the Maryland Wage and Hour Law (MWHL), Md.
Code Lab. & Empl. 3401 to 3-431, for the overtime hours she
worked.
Genex.

The district court granted summary judgment in favor of


Williams appeals, and we now affirm.
I
A

The

FLSA

protects

all

covered

wages and oppressive working hours.

workers

from

substandard

Barrentine v. Arkansas-

Best Freight Sys., Inc., 450 U.S. 728, 739 (1981); see also 29
U.S.C.

202(a)

(noting

that

the

FLSA

protects

the

minimum

standard of living necessary for health, efficiency, and general


well-being

of

workers).

Toward

these

ends,

the

FLSA

establishes the general rule that employers must pay overtime


compensation to employees who work more than forty hours during
a seven-day work week.

29 U.S.C. 207(a)(1). 1

Employees are

Overtime compensation is paid at a rate not less than one


and one-half times the regular rate at which [the employee] is
employed. 29 U.S.C. 207(a)(1).
3

entitled to overtime compensation according to the general rule


unless

their

employer

exemptions applies.

proves

that

one

of

the

Acts

many

See Arnold v. Ben Kanowsky, Inc., 361 U.S.

388, 392 (1960) (noting that the FLSAs exemptions are to be


narrowly construed against the employers seeking to assert them
and their application limited to those establishments plainly
and unmistakably within their terms and spirit).

Genex asserts

that Williams is not entitled to overtime compensation under the


general rule because she is employed in a bona fide . . .
professional capacity.

29 U.S.C. 213(a)(1).

The FLSA provides that any employee employed in a bona


fide . . . professional capacity is exempt from the general
rule requiring overtime compensation.

Id. 213(a)(1).

The

responsibility for outlining the contours of this exemption lies


with

the

Secretary

of

Labor

(the

Secretary).

See

id.

(permitting the Secretary to define[] and delimit[] various


terms in the FLSA).
regulations

define

professional

The relevant Department of Labor (DOL)

employee

capacity,

employed

id.,

as

in
any

bona

fide

employee

who

.
is

[c]ompensated on a salary or fee basis at a rate of not less


than

$455

per

week,

29

C.F.R.

541.300(a)(1),

and

whose

primary duty is the performance of work, id. 541.300(a)(2),


[r]equiring knowledge of an advanced type in a field of science
or

learning

customarily

acquired
4

by

prolonged

course

of

specialized

intellectual

instruction,

id.

541.300(a)(2)(i),

or [r]equiring invention, imagination, originality or talent in


a

recognized

field

of

artistic

or

creative

endeavor,

id.

541.300(a)(2)(ii). 2
The

DOL

regulations

define

primary

duty

as

the

principal, main, major or most important duty that the employee


performs.

Id. 541.700(a).

Under 541.700(a),

[d]etermination of an employees primary duty must be


based on all the facts in a particular case, with the
major emphasis on the character of the employees job
as a whole. Factors to consider when determining the
primary duty of an employee include, but are not
limited to, the relative importance of the exempt
duties as compared with other types of duties; the
amount of time spent performing exempt work; the
employees relative freedom from direct supervision;
and the relationship between the employees salary and
the wages paid to other employees for the kind of
nonexempt work performed by the employee.
Id.
The DOL regulations recognize that the amount of time spent
performing

exempt

work

can

be

useful

guide

in

determining

whether exempt work is the primary duty of an employee:

The parties agree that professional capacity has the


same meaning under the FLSA and the MWHL.
Consequently, an
employee who is employed in a professional capacity under the
FLSA necessarily is employed in a professional capacity under
the MWHL.
See MD. Code Regs. 09.12.41.17 (Professional
capacity has the meaning stated in 29 CFR 541.300 et seq.).
Because the viability of Williams MWHL claim turns on the
viability of her FLSA claim, we focus our analysis on her FLSA
claim.
5

[E]mployees who spend more than 50 percent of their


time performing exempt work will generally satisfy the
primary duty requirement. Time alone, however, is not
the sole test, and nothing in this section requires
that exempt employees spend more than 50 percent of
their time performing exempt work.
Employees who do
not spend more than 50 percent of their time
performing exempt duties may nonetheless meet the
primary duty requirement if the other factors support
such a conclusion.
Id. 541.700(b).
There is no dispute that Williams earns more than $455 per
week.

However, Genex claims that Williams primary duty is the

performance of work (1) requiring advanced knowledge, (2) in a


field of science or learning, (3) that is customarily acquired
by a prolonged course of specialized intellectual instruction,
and, thus, the exemption, referred to in the DOL regulations as
the

[l]earned

applies. 3

professional[]

exemption,

id.

541.301,

Williams counters by arguing that she is not engaged

in the performance of such work.


B
Genex

provides

integrated

managed

care

services

to

its

Under the DOL regulations, a registered nurse generally


meets the learned professional definition.
See 29 C.F.R.
541.301(e)(2) (Registered nurses who are registered by the
appropriate State examining board generally meet the duties
requirements for the learned professional exemption.).
In
contrast, a licensed practical nurse generally does not meet the
learned
professional
definition
because
possession
of
a
specialized advanced degree is not a prerequisite for entry
into such an occupation.
Id.
It is a stipulated fact that
Williams is a registered nurse.

clients,

which

compensation

include

insurers.

various
Such

employers

services

and

focus

on

workers

controlling

health care and disability costs, ensuring that quality health


care is provided to injured workers, and improving return-towork rates.

At Genex, FMCMs help injured workers return to work

as quickly, safely, and cost-effectively as possible.


Williams began working for Genex as an FMCM in 2011 after
Genex acquired the assets of her former employer, Intracorp. 4
Williams is paid a salary by Genex.

She received $83,354.14 in

total compensation in 2012 and $81,103.29 in total compensation


in 2013.
Williams
(Nussdorf),

has

two

Branch

supervisors

Manager

for

at

Genexs

Genex,
Field

Andy
Case

Nussdorf
Management

Branch in Elkridge, Maryland, and Sofia Harris (Harris), the


Case Management Supervisor for Genexs Elkridge Office.

Because

FMCMs at Genex work in the field, rather than in an office,


Williams

rarely

November

5,

sees

2013

her

supervisors.

deposition

that

She

she

last

testified
saw

at

Nussdorf

her
in

September 2011 and that she last saw Harris in the summer of
2012.

Williams

testified

that

she

had

[i]rregular

phone

Williams received a Bachelor of Science in nursing from


Villa Julie College in 2007. In addition to being a registered
nurse, Williams holds several professional certifications,
including
Certified
Case
Manager,
Certified
Disability
Management Specialist, Certified Life Care Planner, Certified
Critical Care Nurse, and Medicare Set Aside Consultant.
7

contact with Nussdorf and Harris, indicating that a week or a


month might go by without a phone call with them.

(J.A. 247).

With regard to emails, Williams acknowledged that sometimes a


long time goes by and theres no communication between her and
either Nussdorf or Harris.

(J.A. 252).

The parties agree that Maryland law requires an FMCM to be


a registered nurse (RN) and to have a Workers Compensation Case
Manager

Certification

from

the

Maryland

Board

of

Nursing.

Although Williams holds these credentials, she does not provide


hands-on

care.

description,
planning,

Williams

management

(J.A.

between

employers

to

involved

employees

for

and
in

682).

carriers,
and

Genexs

[r]esponsible

implementation

individuals

process.

intermediary

according

is

coordination,

injured/disabled

providers,

Rather,

attorneys,
to

ensure

job

assessment,

evaluation

the

FMCMs

FMCM

medical
work[]

of
case

as

medical
appropriate

an

care
and

cost-effective healthcare services and a medically rehabilitated


individual who is ready to return to an optimal level of work
and functioning.

(J.A. 682).

As a result, each FMCM at Genex

is required to: (1) [u]se[] clinical/nursing skills to help


coordinate the individuals treatment program while maximizing
cost

containment;

(2)

[s]erve[]

as

an

intermediary

to

interpret and educate the individual on his/her disability, and


the treatment plan established by the case manager, physicians,
8

and

therapists;

(3)

[w]ork[]

with

the

physicians

and

therapists to set up medical assessments to develop an overall


treatment plan that ensures cost containment while meeting state
and other regulators guidelines; (4) [r]esearch[] alternative
treatment programs such as pain clinics, home health care, and
work

hardening;

and

(5)

[w]ork[]

with

[the]

employer[]

on

modifications to job duties based on medical limitations and the


employee[]s functional assessment.
When

working

with

an

(J.A. 683).

injured

workers

case,

Williams

assesses the injured workers medical condition and treatments


in an effort to better understand the case and to look for
opportunities to minimize the injured workers time away from
work.

She

interviews

injured

workers

medical

history,

the

pertinent
current

current treatment plan.


the

injured

injured

workers

worker

medical

status,

and

analyzes

information,

diagnosis,

the

including

prognosis,

and

From there, she continues to monitor

medical

condition.

She

often

attends

medical appointments with the injured worker and is free to ask


physicians about the course of treatment.

She educates both the

injured worker and the insurance claims adjuster on the injured


workers

injuries

and

treatments,

and

sometimes

makes

recommendations for alternative forms of treatment.


Williams

is

also

responsible

for

developing

an

individualized care plan that will assist the injured worker in


9

returning to work in a timely and safe manner.

Essential parts

of developing that plan include


setting mutually agreed-upon goals with measurable
objectives, determining action steps toward achieving
goals, and selecting essential resources and services
through consultation and collaboration with health
care professionals, the ill/injured person, and the
family or other support persons.
(J.A.

183-84).

Each

individualized

care

plan

that

Williams

develops must establish and document measurable short- and longterm goals for the injured worker.

Williams performs medical

research when needed to develop individualized care plans and


analyzes whether the goals established in the care plans have
been met.
whether

Individualized care plans also contain information on


the

existing

and

planned

medical

treatments

are

consistent with clinical criteria and treatment guidelines for


the medical condition.
FMCMs at Genex also prepare periodic status reports on the
condition

and/or

progress

of

the

injured

worker.

Most

of

Genexs clients have a template or report format that FMCMs use


in

preparing

medical

knowledge

status reports
nurses

these

in

reports.

and

and

Maryland

Williams

training

recognizes
requires

in

developing

that
that

the
care

reflect current nursing practices.


knowledge

and

training

to

provide

10

admits

she
care

standard
plans

be

of

uses

her

plans

and

care

for

tailored

to

She also uses her medical


relevant

information

to

physicians

so

that

the

physicians

can

make

the

decisions regarding the injured workers treatment.

appropriate
She is also

free to make recommendations to physicians concerning a specific


course of treatment, and the record reflects that on occasion
her recommendations are followed.
In addition to creating her own individualized care plans,
Williams evaluates life care plans to assist Genex clients in
litigation.

For example, in one evaluation, Williams examined

the patients extensive medical records, interviewed the patient


and her mother, conducted research, and explained why the life
care

plan

things,

proposed

the

was

patients

wholly
disability

void
was,

because,
in

her

among

other

professional

opinion, attributable to a preexisting condition rather than an


auto accident.

(J.A. 544).
C

On July 3, 2013, Williams brought a two-count complaint


against

Genex

in

the

District of Maryland.

United

States

District

Court

for

the

Count I pled a claim under the MWHL, and

Count II pled a FLSA claim. 5

Following discovery, GENEX moved

Williams filed the complaint as a class action pursuant to


Rule 23 of the Federal Rules of Civil Procedure on behalf of
herself and others similarly situated to her.
At least one
individual, Sandra Sherman, sought to join the purported class.
No class certification order was entered by the district court
pursuant to Rule 23(c)(1), and the parties agreed, for the sake
of efficiency, (Appellants Br. at 3), to limit discovery to
(Continued)
11

for

summary

judgment,

professional.

asserting

that

Williams

was

learned

On September 4, 2014, in a written memorandum

opinion, the district court agreed that Williams was a learned


professional.

Because Williams is a licensed RN and is required

to be an RN to work for Genex in Maryland, the district court


determined that Williams performed work in a field of science
that

is

customarily

acquired

by

specialized intellectual instruction.

prolonged

course

of

The district court then

turned to the work requiring advanced knowledge prong, which is


defined in relevant part as follows:
The phrase work requiring advanced knowledge means
work which is predominantly intellectual in character,
and which includes work requiring the consistent
exercise of discretion and judgment, as distinguished
from performance of routine mental, manual, mechanical
or physical work.
An employee who performs work
requiring
advanced
knowledge
generally
uses
the
advanced knowledge to analyze, interpret or make
deductions from varying facts or circumstances.
29 C.F.R. 541.301(b).
in

light

concluded
knowledge.
advanced

most

that

Applying this definition to the facts

favorable
Williams

to

Williams,

performed

work

the

district

requiring

court

advanced

The district court observed that Williams uses her


knowledge

to

examine

injured

employees

medical

whether Williams job as an FMCM was properly classified as


exempt under the FLSA and the MWHL.
In effect, the parties
agreed that if Williams claims failed, so too did the claims of
any purported class members.
12

conditions and advise[s] them on what to expect. (J.A. 75-76).


The

district

court

further

observed

that

Williams

status

reports indicate that she not only . . . assesses and analyzes


claimants

medical

conditions,

commentary and suggestions.

but

also

(J.A. 76).

provides

her

own

The district court

also cited the fact that Williams was not closely supervised and
the fact that she regularly exercises judgment and discretion in
support of its conclusion that Williams work required the use
of her advanced knowledge.
Based on her job duties, the lack of close supervision, and
the wide discretion exercised by Williams, the district court
rejected Williams argument that she performed mainly clerical
tasks, noting that even though Williams does not have ultimate
decision-making power as to an injured employees treatment or
care

plan,

she

still

uses

her

discretion

and

judgment

to

evaluate cases and make recommendations for future courses of


action, much like a licensed RN engaged in direct patient care.
(J.A. 78).

The district court also rejected Williams argument

that because her status reports are prepared using templates,


she is nothing more than a mere scribe.

(J.A. 79).

The

district court noted that report preparation only accounted for


a small part of Williams job duties, and, in any event, the
preparation of these reports required the use of her advanced
nursing knowledge.
13

The district court entered judgment in favor of Genex on


the same day it issued its memorandum opinion.

Following the

entry of judgment, Williams noted a timely appeal.

II
A
Under Rule 56(a) of the Federal Rules of Civil Procedure,
the district court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Fed.

R.

Civ.

district

P.

court

56(a).

must

view

In

making

the

that

evidence

determination,
in

the

light

the
most

favorable to the nonmoving party. Tolan v. Cotton, 134 S. Ct.


1861, 1866 (2014).
Although we view all the underlying facts and inferences in
the record in the light most favorable to the nonmoving party,
the

nonmoving

party

nonetheless

must

offer

some

concrete

evidence from which a reasonable juror could return a verdict in


his [or her] favor.
242, 256 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

Consequently, summary judgment is appropriate

when the nonmoving party has the burden of proof on an essential


element of her case and does not make, after adequate time for
discovery,

showing

sufficient

to

establish

that

element.

Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986).


14

The

nonmoving party must satisfy this burden of proof by offering


more

than

position.

mere

scintilla

of

evidence

Anderson, 477 U.S. at 252.

summary judgment de novo.

in

support

of

her

We review the grant of

Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc).


Whether

an

requirements

is

employee
a

is

mixed

exempt

question

from
of

the

law

FLSAs

and

fact;

overtime
[t]he

question of how the [employees] spent their working time . . .


is a question of fact.

The question whether their particular

activities excluded them from the overtime benefits of the FLSA


is a question of law.

Icicle Seafoods, Inc. v. Worthington,

475 U.S. 709, 714 (1986); see also Walton v. Greenbrier Ford,
Inc., 370 F.3d 446, 450 (4th Cir. 2004) (The determination of
whether an employee falls within the scope of a FLSA exemption
is ultimately a legal question.).

An employer must prove by

clear and convincing evidence that an employee qualifies for


exemption.

Shockley v. City of Newport News, 997 F.2d 18, 21

(4th Cir. 1993).


B
Genex

argues

that

Williams

is

not

entitled

to

overtime

compensation because, based on the undisputed facts concerning


her job responsibilities, her position was properly classified
as

exempt

under

specifically,

the

Genex

learned

claims

professional

that
15

Williams

exemption.

exercises

More

discretion

and judgment every day, is not closely monitored or supervised,


and

most

importantly,

predominately

uses

her

RN

skills

on

daily basis in the performance of her duties.


In response, Williams claims that the learned professional
exemption

does

not

apply

and

that,

at

minimum,

factual

disputes preclude entry of summary judgment in Genexs favor.


From Williams point of view, her duties consist of nothing more
than

clerical,

specifically,

nondiscretionary,

she

claims

that

and

her

routine

primary

duty

work.
is

More

not

the

performance of exempt work; rather she claims that: (1) she is a


mere liaison between employer and doctor to keep the doctor
appraised on what the physical requirements the claimants job
entails,

(Appellants

Br.

at

36);

(2)

that

she

is

nothing more than a scribe relaying information back to the


adjustors, id. at 38; and (3) that any lay person can perform
the job of FMCM.

At bottom, Williams posits that, even if she

uses her advanced knowledge in the performance of her duties on


occasion, she does so substantially less than the 50 percent
threshold set forth in 541.700(b).
In

our

view,

the

district

court

did

not

err

when

it

concluded that Williams primary duty involved the performance


of exempt work.

First off, Williams own description of her

core job responsibilities fatally undermines her argument that


her

work

involves

primarily

clerical,
16

nondiscretionary,

and

routine work.

On her resume, Williams describes her job as

follows:
Serve as case manager for multidisciplinary files
assessing patient needs, designing research-driven
life care plans, and coordinating [the] delivery of
care.
Oversee medical record reviews, extensive
client interview process, collaboration with the
treatment team, data analysis, and research to project
current and long-term medical needs and their economic
impact.
Coordinating case management initiatives in
concert with providers.
Develop strong professional
relationships
through
proactive
communication
and
coalition-building, facilitating life care planning,
trust management, litigation support.
(J.A. 340).

This description conflicts with the labels Williams

applies to her job duties in the context of this litigation,


namely that her work is clerical, nondiscretionary, and routine.
It

is

well-settled

that

plaintiff

may

not

judgment by submitting contradictory evidence.

avoid

summary

See Barwick v.

Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (A genuine
issue of material fact is not created where the only issue of
fact is to determine which of the two conflicting versions of
the

plaintiffs

testimony

is

correct.).

To

do

so

would

greatly diminish the utility of summary judgment as a procedure


for

screening

out

sham

issues

of

fact.

Id.

(citation

and

internal quotation marks omitted).


Notwithstanding

this

ploy,

the

record

evidence

submitted

demonstrates beyond question that Williams regularly uses her


skills, training, and knowledge as an RN to perform her duties

17

as an FMCM.
who

are

See 29 C.F.R. 541.301(e)(2) (Registered nurses

registered

generally

meet

professional

by

the

the

appropriate

duties

State

requirements

exemption.).

Consistent

examining

for

with

the
her

board

learned
core

job

responsibilities which focus on the use of her clinical/nursing


skills, (J.A. 683), Williams develops individual care plans by
reviewing injured workers medical records and interviewing such
workers

about

their

medical

conditions

and

recovery.

The

development of these care plans must be consistent with clinical


criteria and follow current nursing practices in Maryland.
also

coordinates

medical

care

and

communicates

with

She

medical

providers, insurers, employers, and attorneys to assess whether


injured workers are receiving appropriate care.

She educates

injured workers on their disabilities and answers any questions


they may have in an effort to facilitate their return to work.
In

the

exercise

of

her

discretion

and

judgment,

she

recommendations concerning alternate forms of treatment.

makes
In her

periodic reports on injured workers, she assesses and analyzes


the

injured

workers

conditions,

commentary and suggestions.

but

also

provides

her

Her training and experience as an

RN is indispensable in the performance of these duties.


other

words,

responsibilities,

the

record

performed

own

makes
with

clear
little

that
or

In

Williams
no

direct

supervision, involve the consistent exercise of discretion and


18

judgment as well as the use of her advanced nursing knowledge to


analyze, interpret or make deductions from varying facts or
circumstances.

29 C.F.R. 541.301(b).

Sensing that her work involves the use of her RN skills,


Williams points us to the 50 percent threshold in 541.700(b),
suggesting that she needs to spend at least 50 percent of her
time doing exempt work to qualify for the learned professional
exemption.

Such

is

not

the

case.

The

amount

of

time

an

employee spends on exempt work is not dispositive of whether the


employee is a learned professional.
alone,
section

however,
requires

is

not

that

the
exempt

sole

See id. 541.700(b) (Time


test,

employees

and

nothing

spend

percent of their time performing exempt work.).

more

in
than

this
50

And even if

some of her job duties fell under the rubric of nonexempt work,
such job duties only amounted to a small portion of her overall
job duties, as the record reflects that the vast majority of her
work involved the use and application of her RN skills.
We also note that Williams high salary, over $80,000.00 in
the two years preceding this litigation, itself creates doubt as
to whether she falls within the FLSAs intended protected class.
We have previously emphasized that, [a]lthough salary alone is
not dispositive under the FLSA, . . . the FLSA was meant to
protect low paid rank and file employees.

Darveau v. Detecon,

Inc., 515 F.3d 334, 338 (4th Cir. 2008) (citation and internal
19

quotation marks omitted); see also Marshall v. Western Union


Tel. Co., 621 F.2d 1246, 1251 (3d Cir. 1980) (noting that the
FLSA was meant to protect low paid rank and file employees,
not higher salaried managerial and administrative employees who
are seldom the victims of substandard working conditions and
low wages.).

Indeed, the FLSAs implementing regulations state

that [a] high level of compensation is a strong indicator of an


employees exempt status.
In

sum,

Williams

has

29 C.F.R. 541.601(c).
failed

to

come

forward

with

any

persuasive evidence that Genex violated the FLSA by classifying


her

primary

duty

as

professional.

Thus,

we

conclude

that

Williams is exempt from the mandatory overtime provisions of the


FLSA.

III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED

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